NBTC to lend TOT absolute power clause to push through illegal 2300-MHz plan

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Thailand’s 2300-MHz saga has taken a turn for the surreal with the telecoms regulator stepping in offering to help state telco TOT overcome legal hurdles with the selection of its 2300-MHz business partner by invoking the junta’s absolute power clause.

Earlier, the National Broadcasting and Telecommunications Commission board rejected TOT’s 2300-MHz development plan on the grounds that it violated Article 46 of the NBTC Act that prohibited sub-letting of spectrum. The NBTC board ordered the spectrum recalled under the unused spectrum clause and reallocated through auction.

Instead, the NBTC Secretary-General met with TOT executives and said that the issue had been sorted out and the project would proceed. Then TOT said it would seek approval of the project from the Attorney-General instead of the telecoms regulator.

On Thursday, speaking to the press, NBTC Secretary-General Takorn Tantasit urged TOT to quickly finalize the deal and offered the state telco the use of Section 44 of the interim BE 2557 (2014) constitution, often called the Absolute Power clause, to overcome any problems they may have:

Section 44. In the case where the Head of the National Council for Peace and Order deems necessary for the purpose of reforms in various fields, for the enhancement of unity and harmony among people in the country, or for the prevention, restraint, or suppression of any act which undermines public order or national security, the Throne, the national economy, or State affairs, irrespective of whether such act occurred inside or outside the Kingdom, the Head of the National Council for Peace and Order, with the approval of the National Council for Peace and Order, shall have power to order, restrain, or perform any act, whether such act has legislative, executive, or judicial force; the orders and the acts, including the performance in compliance with such orders, shall be deemed lawful and constitutional under this Constitution, and shall be final. When those have been carried out, a report shall be made to the President of the National Assembly and the Prime Minister for acknowledgement without delay.

Part of Article 265 of the new BE 2560 (2017) constitution stipulates “…the Head of the National Council for Peace and Order shall continue to have the duties and powers as provided in the Constitution of the Kingdom of Thailand (Interim) B.E. 2557…”

Takorn said that he told TOT that it did not have to worry about laws and state enterprise regulations because this project was necessary for TOT’s survival. He added he had offered to help TOT make a case to the National Council for Peace and Order via the Digital Economy Ministry to invoke Article 44 in order to brush aside any legal issues they may be concerned about. He also urged reporters not to worry, as all income for TOT was income for the country.

Takorn said that using the spectrum to the fullest was in line with the government’s Thailand 4.0 mission.

Elsewhere, many newspapers are quoting an anonymous source within TOT claiming that none of the three telcos have won the 2300-MHz LTE beauty contest – the winner will in fact be new entrant Mobile LTE. The reports say that TOT has already engaged with second round negotiations with Mobile LTE, which will take no more than 45 days.

The source said that once finalized, the contract with Mobile LTE will be sent to TOT’s board and then to the Attorney-General for authorization before being signed no later than in Q3 this year.

The unnamed source said the plan will include the rollout of 1,800 base stations within this year, and full coverage of metropolitan areas within two years.

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Don Sambandaraksa
About Don Sambandaraksa 63 Articles
Don is a contributing editor for Disruptive.Asia. For most of the 00s, he was the face of Database, the enterprise tech section of the Bangkok Post, and later covered Thailand and the region for Telecom Asia. Before becoming a journalist he was a civil servant at Thailand's ICT Ministry. He is currently studying for an M.Sc. in Digital Currency at the University of Nicosia. He is also an avid proponent of strong encryption and Bitcoin.

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